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Employees may not sue employer under RLA for ‘colluding’ with union’s breach of duty

By Kathleen Kapusta, J.D.

An employer has no duty to tell the union how to fulfill its duty to represent its constituents, said the court, and without a duty, there can be no liability.

In the latest chapter in this “bitter seniority dispute” between two factions of airline pilots, the Ninth Circuit, affirming the decision of the court below, held that while under the Railway Labor Act, employees can hold their union liable for beaching its duty of fair representation during collective bargaining, the RLA does not support the imposition of liability on an employer solely for its “collusion” in the union’s breach of duty. “Although an employer’s discrimination or hostility toward individual employees during collective bargaining might in some circumstances violate an existing bargaining agreement or some other statute, nothing in the RLA supports what plaintiffs are trying to do here—transform a theory of union liability into a theory of employer liability,” the appeals court stated (Beckington v. American Airlines, Inc., June 10, 2019, Bybee, X).

The merger of US Airways and America West resulted in a lengthy and confrontational relationship between the pilots from the two airlines concerning, among other things, the process for integrating the pilot seniority lists for the two groups. The Air Line Pilots Association (ALPA) represented both the US Airways Pilots (East Pilots) and the America West pilots (West Pilots). After both groups engaged in a seniority dispute that went to arbitration, the East Pilots formed a new union, the US Airline Pilots Association (USAPA), which became the bargaining representative for all the pilots.

Nicolau Award. In the first of numerous lawsuits (Addington I), a group of West Pilots alleged that USAPA breached its duty of fair representation by failing to pursue implementation of the arbitration award, known as the “Nicolau Award,” which composed an integrated seniority list that was viewed as more favorable to the West Pilots. In Addington II, US Airways sued USAPA and the West Pilots, seeking declaratory relief. It sought guidance on whether it could be liable for assisting a breach of the union’s duty of fair representation if it entered into a bargaining agreement that did not implement the Nicolau Award.

In anticipation of a merger between US Airways and American Airlines, the two airlines, USAPA, and the union for American’s pilots negotiated a memorandum of understanding (MOU) addressing pilot seniority. In yet another lawsuit (Addington III), a group of West Pilots alleged that USAPA breached its duty of fair representation by including in the MOU Paragraph 10(h), which abandoned the Nicolau Award. The Ninth Circuit reversed the district court’s judgment after trial in part, holding that USAPA breached its duty of fair representation by inserting Paragraph 10(h) into the MOU. In arbitration pursuant to the MOU, the arbitration panel issued a decision declining to implement the Nicolau Award and using a different methodology for integrating the pilots’ seniority lists.

Collusion. In February 2017, former West Pilots filed this action against post-merger American, seeking damages under the RLA for US Airways’ “collusion” in USAPA’s breach of its duty of fair representation. They alleged that American (then US Airways) colluded with USAPA to eliminate its obligation to use the Nicolau List to integrate pilot operations by participating in “a meeting or series of mostly attorneys-only meetings” during which Paragraph 10(h) was drafted, and by failing to evaluate USAPA’s proposal “to ensure that it is reasonable and supported by a legitimate union purpose.” The district court granted American’s motion to dismiss.

Nothing in the RLA. On appeal, the pilots argued that an employee aggrieved by a union’s breach of a duty of fair representation during collective bargaining can sue not only the union but also the employer for colluding in the union’s breach. Disagreeing, the Ninth Circuit observed that the duty of fair representation owed by a union to its constituents, and the union’s related liability for breaching that duty, derives from the text of the RLA and its framework for collective bargaining. “Nothing in the RLA’s text or framework supports an expansion of that doctrine to impose liability on an employer solely for its ‘collusion’ in a union’s breach of duty.”

To begin, said the appeals court, no provision in the RLA prohibits an employer from participating in a union’s breach in a duty to its members. While it imposes certain duties on employers—such as requiring them to refrain from interfering with employees’ freedom to self-organize and bargain collectively—the pilots did not assert those violations. Instead, their claim rested solely on US Airways’ alleged participation in USAPA’s breach of duty. But the text of the RLA, said the court, does not explicitly require employers to avoid this conduct. Nor is there anything in the framework of the RLA that imposes on employers an additional duty to bargain with interests of particular employees in mind or to ensure that the union does so.

No duty to individual employees. Because an employer owes no duty to individual employees during collective bargaining, whether it sits by as the union neglects some of its constituents, or actively encourages the union through some amorphous concept of “collusion,” the employer’s conduct does not violate any duty under the RLA and thus cannot provide the basis for liability, the court reasoned.

Hybrid suits. And while the pilots argued that their collusion claim against American was analogous to hybrid cases, in which employees sue both their employer and their union, alleging that the employer breached a collective bargaining agreement and that the union breached its duty of fair representation, their reliance on these cases was misplaced. “Although plaintiffs in a hybrid suit may allege collusion as a basis for jurisdiction, collusion is not the basis for liability,” the court explained. While the two claims may be “inextricably interdependent,” the ability to join claims in a hybrid suit for jurisdictional purposes does not create the “source of plaintiffs’ rights” underlying those claims.

Further, the pilots did not claim that the airline breached its own obligations under a CBA. Rather, the only identifiable breach here was the USAPA’s breach of its duty of fair representation. “Without a breach by American of the collective bargaining agreement, we no longer have a hybrid suit but instead a pure breach-of-duty suit that seeks to hold American secondarily liable for USAPA’s breach. The RLA, however, contains no provision to support that theory of secondary liability, and we cannot invent one absent an ‘expression of congressional direction to do so.’”

While the pilots cited a handful of cases suggesting an employer may be liable under the RLA for a union’s breach of duty if the employer “acts in collusion with the union,” the Ninth Circuit emphasized that it has never adopted this theory of employer liability and was not persuaded to do so now.